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(THE FOLLOWING OCCURRED OUT OF THE PRESENCE OF THE JURY:
(PROCEEDINGS NOT PART OF THE PUBLIC RECORD.)
[PAUSE.]
THE COURT: ALL RIGHT. IN THE WESTERFIELD MATTER THE RECORD WILL REFLECT THE APPEARANCE OF COUNSEL, AS WELL AS MR. WESTERFIELD. MEMBERS OF THE MEDIA ARE NOW PRESENT.
LADIES AND GENTLEMEN, MEMBERS OF THE PUBLIC AND MEDIA, A MOTION HAS BEEN MADE TO EXCLUDE THE PRESS FROM PORTIONS OF THE HEARING CONDUCTED TODAY BECAUSE WE WILL BE DISCUSSING POTENTIAL EVIDENTIARY MATTERS. I HAVE ELECTED TO HAVE ALL OF YOU COME IN SO I COULD, NUMBER ONE, PUT YOU ON NOTICE THAT SUCH MOTION HAS BEEN MADE AND THAT YOU MAY VERY WELL BE EXCLUDED FROM THAT HEARING; AND, NUMBER TWO, TO CONDUCT AS MUCH OF THE HEARING AS I CAN IN OPEN COURT WITH YOU PRESENT SO THAT AT LEAST THOSE ISSUES TO WHICH THERE IS NO DISPUTE CAN BE HEARD AND REPORTED ON.
FIRST OF ALL, FOR TIMING SAKE, IT IS MY UNDERSTANDING, MR. FELDMAN, THAT THERE WERE TWO AREAS THAT THE DEFENSE MAY GO INTO. ONE WAS THE MATTER OF THE MEDIA. AND THE EXHIBITS THAT HAD BEEN PRODUCED.
MR. FELDMAN: YES, YOUR HONOR.
THE COURT: WHERE ARE YOU IN TERMS OF PRESENTING THAT TYPE OF EVIDENCE?
MR. FELDMAN: LAST NIGHT WE WERE IN COMMUNICATION WITH MR. CLARKE, ACTUALLY IN THE COURTROOM, AND WE LEARNED THIS MORNING THAT ONE OF THE VIDEOTAPES THAT WE WERE PROVIDED IS IN BETA FORMAT. THAT’S COMPLICATING MATTERS A LITTLE BIT. SO TODAY WE WILL ENDEAVOR TO AS QUICKLY AS POSSIBLE GET IT CONVERTED INTO WHAT WE NEED TO DO TO DO THE CLIPS. WE NEED TO EVALUATE THAT. I DON’T FEEL I’M IN A POSITION TO — WE DON’T KNOW YET, JUDGE.
THE COURT: SO AT LEAST THE PHOTOBOARDS MAY OR MAY NOT SEE THE LIGHT OF DAY AT THIS POINT IN TIME.
MR. FELDMAN: YES, YOUR HONOR.
THE COURT: ALL RIGHT.
AND THEN IT’S MY UNDERSTANDING THAT THE CONSULTATION IS ONGOING WITH THE PERSON THAT YOU REFERENCED YESTERDAY.
MR. FELDMAN: IT IS.
THE COURT: HAVE YOU MADE ANY DECISION?
MR. FELDMAN: WE DON’T KNOW YET. PROBABLY LATE TODAY. MID TO LATE TODAY.
THE COURT: NOW, LET ME ASSUME HYPOTHETICALLY THAT THE INDIVIDUAL OR INDIVIDUALS THAT RELATE TO THE PHOTOBOARDS THAT DEAL WITH THE MEDIA AND THE OTHER EXPERT ARE CALLED TO TESTIFY. HOW MUCH OF TOMORROW THEORETICALLY WOULD YOU NEED?
MR. FELDMAN: NOT MUCH.
THE COURT: OKAY.
MR. FELDMAN: NOT MUCH.
THE COURT: SO THE PEOPLE SHOULD BE PREPARED TO MOVE FORWARD WITH ANY REBUTTAL EVIDENCE TOMORROW MORNING, FOR EXAMPLE?
MR. DUSEK: WHAT IS HE MEANING TO COMMUNICATE BY NOT MUCH?
MR. FELDMAN: YOU KNOW, I’M SORRY, I’VE NOTICED THAT MR. DUSEK SEEMS TO HAVE BEEN STEALING MY LINES THROUGHOUT THE TRIAL AND FROM PRELIMINARY HEARING. I JUST WANT THE RECORD CLEAR ON THAT.
THE COURT: OKAY.
MR. FELDMAN: THANK YOU.
THE COURT: WELL, I THINK THAT’S PROBABLY A GOOD POINT, BUT I THINK IT’S BETTER LEFT BETWEEN COUNSEL WHEN WE ARE IN BREAK THIS AFTERNOON TO COMMUNICATE BECAUSE IF YOU MAKE THE CALL NOT TO CALL ANY ADDITIONAL WITNESSES, THEN THE PEOPLE SHOULD BE ON NOTICE FOR THAT PURPOSE SO THAT WE CAN IMMEDIATELY PROCEED TO REBUTTAL.
NOW, BEFORE WE GET INTO REBUTTAL, WHICH MAY OR MAY NOT CAUSE THE COURTROOM TO BE CLOSED, I DO WANT TO DISCUSS SCHEDULING.
DO THE PEOPLE IN THE — LET’S ASSUME THAT ALL OF THE REBUTTAL WITNESSES YOU ANTICIPATE CALLING ARE, INDEED, CALLED. HOW MUCH OF WEDNESDAY DO YOU THINK YOU WOULD NEED? IN OTHER WORDS, IS IT A FULL DAY’S WORTH OF WITNESSES?
MR. DUSEK: YES.
THE COURT: ALL RIGHT.
MR. DUSEK: PROBABLY INTO THURSDAY.
THE COURT: AND —
MR. DUSEK: INTO THURSDAY.
THE COURT: — INTO THURSDAY?
MR. DUSEK: YES.
THE COURT: IS THERE GOING TO BE ENOUGH TIME ON THURSDAY FOR US TO DISCUSS JURY INSTRUCTIONS, ASSUMING THERE’S NOT GOING TO BE ANY SURREBUTTAL?
MR. FELDMAN: YOU CAN ASSUME, BASED ON WHAT — JUST FOR SCHEDULING, BASED ON WHO THEY’VE DISCLOSED, THERE’S A — DEPENDING ON HOW YOU RULE, THERE’S A REASONABLE LIKELIHOOD OF SURREBUTTAL, YOUR HONOR, AND AT LEAST A DAY’S WORTH.
THE COURT: OKAY.
OKAY. THAT MEANS WE WILL NOT BE IN A POSTURE TO DISCUSS JURY INSTRUCTIONS UNTIL SOME TIME NEXT WEEK.
MR. DUSEK: OR FRIDAY.
THE COURT: WELL, THAT’S A VERY GOOD POINT. I HAVE A VERY HEAVY 8:30 CALENDAR ON FRIDAY, BUT ONCE THOSE MATTERS ARE OUT OF THE WAY, THAT’S A VERY GOOD POINT. WE COULD USE FRIDAY SOLELY FOR THE PURPOSE OF DISCUSSING JURY INSTRUCTIONS, BECAUSE BY THEN I’LL HAVE A VERY GOOD FEEL FOR ALL OF THE EVIDENCE. WOULD THAT BE AGREEABLE TO THE DEFENSE AS WELL?
MR. FELDMAN: SURE.
MR. BOYCE: THAT’S FINE, YOUR HONOR.
THE COURT: SO WE’LL SET A TIME ON THE 26TH. IT WILL PROBABLY BE 10:00 O’CLOCK, SOMEWHERE AROUND THERE, BECAUSE I HAVE FIVE ITEMS ON MY 8:30 CALENDAR, ONE OF WHICH IS A MOTION. SO THAT’S PROBABLY REALISTIC. OKAY.
AND THEN I AM ASSUMING, AND MAYBE I SHOULDN’T ASSUME, I WILL ASK BOTH SIDES WHERE YOU ARE IN TERMS OF PREPARATION OF YOUR CLOSING ARGUMENTS.
MR. DUSEK: WE WILL BE READY TO ROLL.
THE COURT: YOU WILL BE READY. OKAY. IMMEDIATELY UPON CONCLUSION OF THE RECITATION OF THE JURY INSTRUCTION?
MR. DUSEK: I WOULD LIKE TO BE ABLE TO START THE FIRST THING THE NEXT MORNING OF THE END OF EVIDENCE.
THE COURT: SO YOUR PREFERENCE WOULD BE FOR OUR OPENING ARGUMENT AT LEAST TO START AT THE BEGINNING OF THE DAY?
MR. DUSEK: YES.
THE COURT: ALL RIGHT.
WELL, THAT HELPS ME BECAUSE THESE INSTRUCTIONS IN A HOMICIDE CASE GENERALLY TAKE IN THE RANGE OF FORTY-FIVE MINUTES TO READ, FORTY-FIVE MINUTES TO AN HOUR, DEPENDING ON WHAT WE DECIDE ON.
OKAY. WHAT I’M TRYING TO DO IS GET SOME PERSPECTIVE, BECAUSE THERE ARE OTHER CASES TRAILING ME AROUND, AND I’M GOING TO NEED TO BE IN A POSTURE TO LET THE LAWYERS KNOW IN ANOTHER MATTER WHERE WE’RE GOING TO BE.
[DISCUSSION OFF THE RECORD BETWEEN THE COURT
AND THE CLERK.]
THE COURT: ALL RIGHT. THE LAWYERS ARE COMING IN TOMORROW, SO I WILL BE ABLE TO GIVE THEM KIND OF A PREVIEW OF WHAT’S COMING.
ALL RIGHT. EXCUSE ME A MINUTE. LET ME MAKE A NOTE. IF I DON’T WRITE IT DOWN, I’LL FORGET IT.
OKAY. ALL RIGHT, THEN, WHAT WE’LL DO IS I’LL SET 10:00 O’CLOCK ON FRIDAY FOR PURPOSES OF JURY INSTRUCTION DISCUSSION. THE MEDIA IS WELCOME TO ATTEND THAT VERY EXCITING AND THOUGHT-PROVOKING DISCUSSION. AND MEMBERS OF THE TELEVISION ARE WELCOME TO DO THAT, ALTHOUGH IT WOULD PROBABLY PUT AMERICA TO SLEEP. BUT BE THAT AS IT MAY, THEY ARE WELCOME TO ATTEND.
ALL RIGHT. NOW, THAT BRINGS US — IS THERE ANYTHING ELSE WE CAN COVER BEFORE WE DISCUSS REBUTTAL EVIDENCE?
MR. FELDMAN: JUST SIMPLE MATTERS, YOUR HONOR.
COUNSEL HAVE AGREED TO STIPULATE THAT COURT EXHIBIT 58 CAN BE RELEASED TO THE DEFENSE. WE WILL RETURN IT TOMORROW OR UPON MAKING A COPY. THAT’S NOT A PROBLEM I THINK WITH THE PROSECUTION.
THE COURT: THAT’S A VIDEOTAPE OF THE INTERVIEW WITH MR. WESTERFIELD?
MR. FELDMAN: YES.
THE COURT: IS THAT SO STIPULATED?
MR. DUSEK: YES.
THE COURT: ALL RIGHT. THAT’S DULY NOTED.
MR. CLARKE: ALSO, YOUR HONOR, I HAVE — THE COURT MAY RECALL SOME OF THE PORNOGRAPHIC EXHIBITS, 147 AND 148, HAVE BEEN EDITED —
THE COURT: ALL RIGHT.
MR. CLARKE: — PURSUANT TO THE COURT’S DIRECTION.
THE COURT: ALL RIGHT. OKAY.
MR. CLARKE: WHICH I WILL RETURN TO THE CLERK NOW.
THE COURT: OKAY.
MR. CLARKE: 147 AND 148, IF I DID NOT IDENTIFY THEM.
THE COURT: RIGHT. NO, THOSE ARE THE EXHIBITS.
AND WHAT WE WILL DO, PEGGY, IS THE ORIGINAL MARKED 147 AND 148 WILL BE PLACED UNDER SEAL. THE MODIFIED 147 AND 148 WILL BE RE-MARKED WITH THE SAME NUMBERS AND AVAILABLE TO THE JURY IF THEY SO ELECT TO VIEW THOSE.
ALL RIGHT. ANYTHING ELSE?
[NO RESPONSE.]
THE COURT: FIRST OF ALL, THEN, BEFORE I EXCLUDE THE PUBLIC, THE FIRST THING I WOULD LIKE TO KNOW, MR. DUSEK, IS AT THIS POINT IN TIME HAVE THE PEOPLE PRETTY MUCH ESTABLISHED WHO THEY INTEND TO CALL IN REBUTTAL?
MR. DUSEK: YES.
THE COURT: ALL RIGHT. AND IF YOU COULD KINDLY LET ME KNOW IN TERMS OF WHO THEY ARE AND WITHOUT MAKING OFFERS OF PROOF AT THIS TIME, JUST BY NAME, AND THEN I’LL HEAR FROM MR. FELDMAN AND DETERMINE WHETHER OR NOT WE NEED TO GO INTO CLOSED SESSION.
MR. DUSEK: PERHAPS I COULD TELL MR. FELDMAN WHO THEY ARE AT THE TABLE.
THE COURT: OH. ALL RIGHT. THAT’S PERFECTLY ACCEPTABLE.
MR. DUSEK: AND CERTAINLY IF YOU ARE INTERESTED, I CAN COME DOWN HERE AND SEE THE NAMES THAT I AM PROVIDING.
THE COURT: I’M ONLY CONCERNED IF THERE’S GOING TO BE A REQUEST BY MR. FELDMAN AS A RESULT OF ANY OBJECTION TO GO IN CLOSED SESSION. SO PERHAPS IF YOU JUST SHOWED HIM THE LIST, HE CAN MAKE THAT CALL.
MR. FELDMAN: THANK YOU.
MR. DUSEK: MY CONCERN IS ANY CONTACT OF THESE WITNESSES BETWEEN NOW AND THEIR TESTIFYING BY NON-COURT PERSONNEL.
THE COURT: ALL RIGHT. THAT’S FINE.
MR. DUSEK: WE, OF COURSE, WILL BE LOOKING FOR SURREBUTTAL WITNESSES ALSO —
THE COURT: OKAY.
MR. DUSEK: — THAT WE ARE GOING TO TAKE A DAY TO HEAR FROM.
MR. FELDMAN: I SAID MAY.
[DISCUSSION OFF THE RECORD AMONG COUNSEL.]
THE COURT: ALL RIGHT. MR. FELDMAN.
MR. FELDMAN: THERE’S A NUMBER OF INDIVIDUALS THAT I THINK WE NEED TO RAISE ISSUES CONCERNING. I MEAN AT LEAST WHAT I UNDERSTAND OR WHAT I CAN INFER THE PROFFERS WILL BE, WE NEED TO RAISE ISSUES TO THE COURT INVOLVING EVIDENTIARY MATTERS.
THE COURT: ALL RIGHT. I HAVE RECEIVED A NOTE FROM MEMBERS OF THE MEDIA INDICATING THEY WANT TIME TO HAVE MISS CUMMINS HERE TO OBJECT TO THE CLOSURE OF THE HEARING. THAT REQUEST WILL BE DENIED. HOWEVER, FOR HER PURPOSES AND YOURS, I WILL NOTE AN OBJECTION BY THE MEDIA TO THE CLOSING OF THE SESSION. I WILL TELL YOU WHAT I TELL HER, AND THAT IS SIMPLY THAT WE ARE GOING TO BE DISCUSSING MATTERS THAT MAY OR MAY NOT SEE THE LIGHT OF DAY IN THIS TRIAL. AS A RESULT, OUT OF AN ABUNDANCE OF CAUTION, BECAUSE I WILL BE FRANK WITH YOU, THE MEDIA CAN’T SEPARATE THE FOREST FROM THE TREES, AND IS LIABLE TO PUBLISH INFORMATION THIS JURY IS NOT GOING TO SEE. AND EVEN THOUGH I ANTICIPATE THAT THEY ARE IN COMPLIANCE WITH THE COURT’S ORDER, I DON’T WANT TO RUN THAT RISK.
SO I’M GOING TO EXERCISE MY DISCRETION AND CLOSE THE COURTROOM, FINDING THAT THE RIGHTS OF THE MEDIA OR THE PUBLIC ARE SUBSERVIENT TO THE RIGHTS OF THE DEFENDANT AND THE PEOPLE TO A FAIR TRIAL.
SO AT THIS TIME I’M GOING TO ORDER THE COURTROOM CLOSED TO MEMBERS OF THE MEDIA AND PUBLIC. THANK YOU ALL.
(END OF PROCEEDINGS OUT OF THE PRESENCE OF THE JURY.)
(PAGES 8297 THROUGH 8342 HAVE BEEN ORDERED SEALED BY
THE COURT AND APPEAR IN SEPARATE SEALED VOLUME NUMBER 34A.
UNSEALED PROCEEDINGS CONTINUE ON PAGE 8343. NOTHING IS
OMITTED.)
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